State v. Thompson

• Decision Date: 24 May 1951
• Docket Number: No. 31618,31618
• Citation: 232 P.2d 87,38 Wn.2d 774
• Court: Washington Supreme Court
• Parties: STATE, v. THOMPSON.

Page 774

38 Wn.2d 774

232 P.2d 87

STATE, v. THOMPSON.

No. 31618.

Supreme Court of Washington, Department 1.

May 24, 1951.

Theodore S. Thompson, per se.

Charles O. Carroll, T. P. Ulvestad, Seattle, for respondent.

FINLEY, Justice.

Theodore S. Thompson, hereinafter referred to as appellant, was convicted of second degree burglary. He has appealed from the judgment and sentence entered on the verdict.

The appellant assigns the giving of the court's Instruction No. 5 as error. That instruction is quoted as follows: 'The word 'break' as defined by the laws of the State of Washington, when used in connection with the crime of burglary, means and includes the entering of a building, room or apartment, by or through any opening of any kind.'

The decisive question in this appeal is whether the concept of 'a breaking' or the 'use of some force' is a necessary element in proving the commission of the crime by burglary. Stated with a moderately different twist, the question is: Does the entering of a building, room or apartment by or through any opening of any kind constitute a constructive or legally cognizable fictionalbreaking under our statutory definition of the word 'break' as an element of the crime of burglary in this state?

In this opinion the rule is established that the proof of a mere entering of a building, room or apartment, by or through any opening of any kind would not constitute proof of a breaking, as that essential element of the crime of burglary is defined in our statutes. It follows that the giving of the court's Instruction No. 5 constituted prejudicial error. The basis for this decision is discussed in some detail as follows:

The crime of second degree burglary is set forth in Rem.Rev.Stat. Sec. 2579, as follows: 'Every person who, with intent to commit some crime therein shall, under circumstances not amounting to burglary in the first degree, enter the dwelling-house of another or break and enter, or, having committed a crime therein, shall break out of, any building or part thereof, or a room or other structure wherein any property is kept for use, sale or deposit, shall be guilty of burglary in the second degree and shall be punished by imprisonment in the state penitentiary for not more than fifteen years.'

Rem.Rev.Stat. Sec. 2303, as it applies to the crime of burglary, reads in part as follows:

'(20) The word 'break' when used in connection with the crime of burglary, shall include:

'(a) Breaking or violently detaching any part, internal or external, of a building;

'(b) Opening, for the purpose of entering therein, any outer door of a building or of any room, apartment or set of apartments therein separately used and occupied, or any window, shutter, scuttle or other thing used for covering any opening thereto or therein, or which gives passage from one part thereof to another;

'(c) Obtaining entrance into such building or apartment by any threat or artifice, used for that purpose, or by collusion with any person therein;

'(d) Entering such building, room or apartment by or through any pipe, chimney or other opening, or by excavating or digging through or under a building or the walls or foundation thereof.'

Perhaps, as generally understood, and certainly on the basis of its legal history, the term burglary suggests the concept of a breaking, or some use of force, as an essential element in the proof of the commission of the crime of burglary. Furthermore, it is apparent from a casual reading of the provisions of Rem.Rev.Stat. Sec. 2303, that the term 'break' or 'breaking', as a statutory concept, normally connotes the use of some force in effecting an entry. In State v. Rosencrans, 24 Wash.2d 775, 779, 167 P.2d 170, 172, the following language is found: '* * * The gist of burglarious breaking is the application of force to remove some obstacle to entry, and the amount of force employed is not material. The exercise of the slightest force is sufficient. The breaking consists of the removal by the intruder, by the exerise of force, of an obstruction which, if left untouched, would prevent entrance. Hence, the application of force to push further open an already partly open door or window to enable a person to enter a room or building, is a breaking sufficient to constitute burglary if the other essential elements of the offense are present. * * *'

However, subparagraph (20)(d) of Rem.Rev.Stat. Sec. 2303, eliminates the use of force as an element in the crime of burglary, where the entry is accomplished 'by or through any pipe, chimney or other opening'. The general terminology or other opening follows the precise terms, (1) pipe, and (2) chimney.

The ejusdem generis principle of statutory interpretation is well known and citation of available and extensive authority is not indicated. The principle requires that general terms appearing in a statute in connection with precise, specific terms, shall be accorded meaning and effect only to the extent that the general terms suggest items or things similar to those designated by the precise or specific terms. In other words, the precise terms modify, influence or restrict the interpretation or application of the general terms where both are used in sequence or collocation in legislative enactments. The ejusdem generis principle may not apply automatically in every problem of statutory interpretation where precise, specific words are followed by general words. 50 Am.Jur. 246 Sec. 250. To justify or to provide statutory sanction for the court's Instruction No. 5, it would be necessary to disregard or withhold application of ejusdem generis respecting Rem.Rev.Stat. Sec. 2303(20)(d). That would accord broad, all inclusive meaning to the phrase, 'or other opening'. Thus, an entry through a wide open door, absent any breaking or even the slightest exertion of force, except the minimum necessary for an alleged offender to propel himself against or through the atmosphere, might constitute burglary. The result would be the same whether based on the notion that a constructive or fictional breaking had occurred or on the more realistic thought, that a breaking, or use of force, had by statute become a nonessential element respecting the crime of burglary. Actually, in Rem.Rev.Stat. Sec. 2303(20)(d), the legislature appears to have intended to eliminate the element of force or breaking respecting the crime of burglary in some situations, but only in those where entry was accomplished through a pipe or a chimney or a similar opening which might provide easy ingress or egress without the necessity for any application of force to achieve entry. In other words, the thinking may very well have been that a person achieving entry cleverly and easily by or through a pipe, chimney or other similar opening, without force or a breaking (the other elements of the crime being present) should not escape the consequence of his acts and possible conviction of burglary merely because of the absence of the element of force in achieving the entry.

Carrying the thought one step further: the legislative draftsman appears to have been thinking of openings, normally not closed or fastened shut; that is, openings similar to chimneys or pipes. Hence, the use of the general terminology following the more precise in Rem.Rev.Stat. Sec. 2303(20)(d). But recognizing that it was intended to make certain exceptions to the familiar requirement regarding a breaking or use of some force, is not to say that the legislature intended to abandon entirely the concept 'of a breaking' or the 'use of force' as an essential element in the proof of the commission of the crime of burglary. Contrary to the legislative intent as we comprehend it relative to Rem.Rev.Stat. Sec. 2303(20)(d), the court's Instruction No. 5, quoted above, eliminates entirely the concept of 'a breaking' or 'use of force.' A jury, analyzing the state's evidence under Instruction No. 5, and believing an entry had been made 'by or through' any opening of any kind, other than a chimney or pipe (possibly an open doorway), but not convinced beyond a reasonable doubt that there had been a 'breaking' use of some force--the Rosencrans case, supra, nevertheless could find a defendant guilty of the crime of burglary. In our opinion, such a result would be without statutory authority.

One further thought occurs. In Rem.Rev.Stat. Sec. 2303(20), the legislature, at some length and in some detail, has modified the apparently usual and historical legal meaning of the term break, where, as provided therein, (a) any part of a building is broken or detached; (b) any window, shutter, scuttle or other thing is opened; (c) entrance is attained by threat, artifice or collusion; (d) entrance is achieved through a pipe, chimney or other opening, or by excavating or digging under a building, walls or foundation.

Thus, reasonaly definite legislative expression has been indicated respecting a number of situations that might be expected to arise. This brings to mind a second principle of statutory interpretation--that the expression of one thing excludes others not expressed; expressio unius est exclusio alterius. State ex rel. Port of Seattle v. Department of Public Service, 1 Wash.2d 102, 95 P.2d 1007; 50 Am.Jur. 238, Sec. 244. This latter principle is further justification for strict interpretation and application of ejusdem generis.

Finally, if any additional acceptable legal doctrine be necessary to buttress the result towards which this discussion points, it may be emphasized that penal statutes generally are construed strictly against the state and in favor of an accused. State v. Hemrich, 93 Wash. 439, 161 P. 79, L.R.A. 1917B, 962.

In view of the foregoing, our conclusion is apparent that the legislature did not intend the complete elimination of the concept of 'a breaking' which was possible under the court's Instruction No. 5. That instruction obviously went beyond the sanction of the existing statutes and...